Citation NR: 9702465
Decision Date: 01/28/97 Archive Date: 02/07/97
DOCKET NO. 95-02 605 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased disability evaluation for
postoperative residuals of a herniated nucleus pulposus at
the L4-L5 and L5-S1 levels, currently rated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Charles G. Sener, Associate Counsel
INTRODUCTION
The appellant was retired from active military service in
June 1993 with approximately 20 years of active duty.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1993 rating decision of the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO), which granted service connection for
postoperative residuals of a herniated nucleus pulposus at
the L4-L5 and L5-S1 levels, and assigned a 10 percent rating.
Review of the appellant’s claims file reveals that he
requested a hearing before a hearing officer at the RO in
January 1994. The appellant failed to report for his
hearing, which was scheduled for June 1994, and subsequently
requested that his hearing be rescheduled. Per the
appellant’s June 1994 request, the RO scheduled the appellant
for another hearing before a hearing officer at the RO, to be
held on February 27, 1995. The appellant received
notification of that hearing in August 1994. On February 27,
1995, a hearing officer indicated that the appellant once
again failed to report for his scheduled hearing. The Board
notes that the appellant has had ample opportunity to present
argument and evidence in support of his claim. Accordingly,
his claim will be adjudicated based on the available evidence
of record.
CONTENTIONS OF APPELLANT ON APPEAL
Although the appellant has made no specific contentions
concerning the issue on appeal, other than disagreement with
the presently assigned 10 percent rating, his representative
asserts that the appellant’s service-connected postoperative
residuals of a herniated nucleus pulposus at the L4-L5 and
L5-S1 levels are more severely disabling than currently
evaluated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against a disability evaluation in excess of 10
percent for postoperative residuals of a herniated nucleus
pulposus at the L4-L5 and L5-S1 levels.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the agency of original jurisdiction.
2. The appellant’s service-connected postoperative residuals
of a herniated nucleus pulposus at the L4-L5 and L5-S1 levels
are manifested by loss of normal lumbar curve, slight
limitation of lumbar motion with objective evidence of
painful movement, diminished reflexes on the right side,
radiologic evidence of early to minimal degenerative disease
of the lower lumbar spine, and subjective complaints of back
stiffness upon arising in the morning.
CONCLUSION OF LAW
The schedular criteria for a disability evaluation in excess
of 10 percent for postoperative residuals of a herniated
nucleus pulposus at the L4-L5 and L5-S1 levels are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102,
4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code
5003, 5292, 5293 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Because a well-grounded claim is neither defined by the
statute nor the legislative history, it must be given a
common sense construction. A well-grounded claim is a
plausible claim, one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). The appellant apparently believes
that the RO’s assignment of a 10 percent rating for his
postoperative residuals of a herniated nucleus pulposus at
the L4-L5 and L5-S1 levels is fallacious. In accordance with
38 U.S.C.A. § 5107 (West 1991) and Murphy v. Derwinski,
1 Vet.App. 78 (1990), the appellant's claim of entitlement to
an increased disability evaluation is minimally well-grounded
and has been adequately developed.
Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
Part 4 (1995). Separate rating codes identify the various
disabilities. In determining the current level of
impairment, the disability must be considered in the context
of the whole recorded history. 38 C.F.R. § 4.2 (1995).
However, “the regulations do not give past medical reports
precedent over current findings.” Francisco v. Brown, 7
Vet.App. 55, 58 (1994). While evaluation of a
service-connected disability requires a review of the
appellant’s medical history with regard to that disorder, the
United States Court of Veterans Appeals (Court) has held
that, where entitlement to compensation has already been
established, and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet.App. 55, 58 (1994); Peyton v.
Derwinski, 1 Vet.App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2
(1995).
An evaluation of the level of disability present also
includes consideration of the functional impairment of the
appellant's ability to engage in ordinary activities,
including employment, and the effect of pain, supported by
adequate pathology and evidenced by pain on movement, on the
functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59
(1995). Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating; otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (1995).
When, after consideration of all procurable and assembled
data, a reasonable doubt arises regarding the degree of
disability, such doubt will be resolved in favor of the
claimant. By reasonable doubt is meant one which exists
because of an approximate balance of positive and negative
evidence which does not satisfactorily prove or disprove the
claim. It is a substantial doubt and one within the range of
probability as distinguished from pure speculation or remote
possibility. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R.
§ 3.102 (1995).
Degenerative arthritis established by x-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. When the limitation of motion of the specific
joints involved is noncompensable under the appropriate
diagnostic codes, an evaluation of 10 percent is applied for
each major joint or group of minor joints affected by
limitation of motion. These 10 percent evaluations are
combined, not added, under Diagnostic Code 5003. Limitation
of motion must be objectively confirmed by findings such as
swelling, muscle spasm, or satisfactory evidence of painful
motion. In the absence of limitation of motion, x-ray
evidence of involvement of 2 or more major joints or 2 or
more minor joint groups warrants a 10 percent evaluation. A
20 percent evaluation requires x-ray evidence of 2 or more
major joints or 2 or more minor joint groups, with occasional
incapacitating exacerbations. (The 10 percent and 20 percent
evaluations based on x-ray findings, above, will not be
combined with ratings based on limitation of motion and will
not be utilized in rating disorders listed under Diagnostic
Code 5013 to 5024, inclusive.). 38 C.F.R. § 4.71a,
Diagnostic Code 5003 (1995).
Slight limitation of motion of the lumbar segment of the
spine warrants a 10 percent evaluation. Moderate limitation
of motion of the lumbar segment of the spine warrants a 20
percent evaluation. A 40 percent evaluation requires severe
limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code
5292 (1995).
A 10 percent evaluation is warranted for mild intervertebral
disc syndrome. A 20 percent evaluation requires moderate
intervertebral disc syndrome with recurring attacks. A 40
percent evaluation requires severe intervertebral disc
syndrome with recurring attacks with intermittent relief. A
60 percent evaluation is warranted for pronounced
intervertebral disc syndrome with persistent symptoms
compatible with sciatic neuropathy (i.e., with characteristic
pain and demonstrable muscle spasm and an absent ankle jerk
or other neurological findings appropriate to the site of the
diseased disc) and little intermittent relief. 38 C.F.R.
§ 4.71a, Diagnostic Code 5293 (1995).
Review of the appellant’s service medical records reveals
that he underwent multiple laminectomies and diskectomies due
to a herniated nucleus pulposus at the L4-L5 and L5-S1
levels. The surgeries were performed in August 1986, March
1987, and May 1988. A June 1988 service medical record
indicates that the appellant was doing well 10 days status
post lumbar laminectomy. The next complaint of back pain was
shown in December 1989, after the appellant had been lifting
30 and 40 pound objects. Physical examination disclosed full
active range of motion, negative straight leg raising, intact
sensation, and heel and toe walk without difficulty. A final
assessment of muscle strain was listed, and the appellant
received medications for his pain.
A March 1993 service retirement report of medical examination
demonstrates normal clinical evaluation of the appellant’s
spine and musculoskeletal system, except for a low back scar
from previous back surgeries. A back disorder was not shown
as a defect or diagnosis.
At an August 1993 VA general medical examination for
compensation and pension (C&P) purposes, it was reported that
the appellant was not able to lift objects; if he did, it put
him in bed. The appellant also noted that his back was stiff
in the morning upon arising. An August 1993 VA radiologic
report shows a final impression of early to minimal
degenerative disease of the lower lumbar spine, with minimal
narrowing of the intervertebral space at L4-L5 and L5-S1, and
minimal anterior bony spur formation at L4-L5. A thorough
and contemporaneous evaluation of the appellant’s lumbar
spine was not performed; therefore, the appellant underwent
additional VA medical examination in October 1993.
VA physical examination of the appellant’s spine in October
1993 disclosed loss of normal lumbar curve with otherwise
normal appearing musculature. Range of motion of the spine
was reported, as follows: forward flexion to 90 degrees;
backward extension to 25 degrees; lateral flexion to 25
degrees, bilaterally; and rotation to 20 degrees,
bilaterally. Objective evidence of painful motion was
demonstrated by the appellant’s grimace with all spinal
movement. An examiner noted diminished right patella and
Achilles reflexes, with normal left reflexes. The October
1993 VA report of C&P examination lists a final diagnosis of
L4-S1 degenerative disc disease.
In applying the schedular criteria for degenerative arthritis
under Diagnostic Code 5003, previously listed, the Board
notes that degenerative arthritis established by x-ray
findings should be rated on the basis of limitation of motion
under the appropriate diagnostic codes for the specific joint
or joints involved. Moreover, Diagnostic Code 5292 provides
that slight limitation of lumbar spine motion warrants a 10
percent rating, while a 20 percent evaluation requires
moderate limitation of motion. Finally, Diagnostic Code 5293
provides the rating criteria for intervertebral disc
syndrome. As stated above, a 10 percent evaluation is
warranted for mild intervertebral disc syndrome, and a 20
percent rating requires moderate intervertebral disc syndrome
with recurring attacks.
The appellant’s service-connected postoperative residuals of
a herniated nucleus pulposus at the L4-L5 and L5-S1 levels is
manifested by loss of normal lumbar curve, slight limitation
of lumbar motion with objective evidence of painful movement,
diminished reflexes on the right side, radiologic evidence of
early to minimal degenerative disease of the lower lumbar
spine, and subjective complaints of back stiffness upon
arising in the morning.
An increase in the disability rating is at issue, and the
present level of disability is of primary concern. Inasmuch
as the appellant has not proffered any clinical evidence
other than that which has already been discussed above, the
Board is constrained by the evidence of record. After
careful and longitudinal consideration of all procurable and
assembled data, including the contentions of the appellant
and his representative mentioned above, the Board concludes
that the appellant’s service-connected postoperative
residuals of a herniated nucleus pulposus at the L4-L5 and
L5-S1 levels are most appropriately rated as 10 percent
disabling under Diagnostic Code 5293 for intervertebral disc
syndrome with mild symptoms. Inasmuch as the clinical
evidence of record does not demonstrate moderate
intervertebral disc syndrome with recurring attacks or
moderate limitation of lumbar motion under Diagnostic Code
5292, an increased schedular evaluation may not be assigned
at this time.
As factfinder, the Board is required to weigh and analyze all
the evidence of record and to make determinations as to the
credibility of the evidence. Sanden v. Derwinski, 2 Vet.App.
97, 100 (1992). When all of the evidence is assembled, VA is
then responsible for determining whether the evidence
supports the claim or is in relative equipoise, with the
veteran prevailing in either event, or whether a fair
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski,
1 Vet.App. 49, 55 (1990). In the Board’s opinion, there is
not a substantial doubt so as to place the evidence in
relative equipoise and trigger the “benefit of the doubt
rule,” [38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102
(1995)] which becomes an issue only after consideration of
all evidence and material of record. See Gilbert v.
Derwinski, 1 Vet.App. 49, 55 (1990).
ORDER
An increased disability evaluation for postoperative
residuals of a herniated nucleus pulposus at the L4-L5 and
L5-S1 levels is denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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